GA supporters in the Senate on Jan. 16 introduced a measure that would compel the FAA to go through the rulemaking process before implementing any policy changes related to sleep disorders. The legislation was introduced by AOPA members Sens. Joe Manchin (D-W.Va.) and Jim Inhofe (R-Okla.), and co-sponsored by Sens. Mark Begich (D-Alaska) and Mike Johanns (R-Neb.). (Begich and Johanns co-chair the Senate GA Caucus and both Manchin and Inhofe are caucus members.)
The language in the Senate bill, S. 1941, mirrors that of H.R. 3578, introduced in November by House aviation subcommittee Chairman Frank LoBiondo (R-N.J.) and Ranking Member Rick Larsen (D-Wash.). That bill passed the House Transportation and Infrastructure Committee on Dec. 4, 2013, positioning it for a vote by the full House.
The legislation comes in response to the FAA’s unilateral announcement of a policy that would require pilots with a body mass index (BMI) of 40 or greater to undergo expensive and intrusive sleep apnea testing. The FAA initially said it planned to lower the BMI requirement over time, potentially affecting more than 120,000 pilots with a BMI of 30 or higher.
“As a pilot myself, I recognize that there is nothing more important than making sure our skies are safe, and I appreciate the FAA’s efforts to offer the best guidance on how to do so,” said Manchin. “I also believe that government should work as a partner with the private sector. It’s just common sense to let the pilot community provide public feedback during the rulemaking process before the FAA finalizes any new guidelines.”
“This bill protects our nation’s pilots by ensuring that any changes to the medical certification requirements are done in a manner consistent with the well-established rulemaking process that allows for thorough consideration and adequate public input,” said Inhofe. “This is a classic ‘bureaucrats know best’ effort by the FAA regarding the personal health of those in the aviation industry. I am proud to join Sen. Manchin in introducing legislation that would enforce transparency with FAA’s latest change to its medical certification requirement and ensure pilots, air traffic controllers, and other stakeholders who would be potentially impacted have a voice.”
The FAA’s sudden announcement of the policy change drew an immediate and overwhelmingly negative response from the general aviation community.
AOPA demanded that the FAA withdraw the policy or submit to the rulemaking process, and turned to friends in Congress for help. The issue was also discussed at a meeting between AOPA President Mark Baker and FAA Administrator Michael Huerta, and on Dec. 19, 2013, the FAA contacted AOPA to say it would put the policy change on hold.
The FAA has since said it is still concerned about sleep apnea and wants to find a more acceptable way to address the issue. The legislation now working its way through the House and Senate would ensure that the stakeholder community has the opportunity to weigh in before the FAA makes any future changes to its policy.
“I’m frustrated the FAA didn’t follow the proper procedures and refused to listen to public comments before changing this regulation,” said Begich. “Testing private pilots for sleep apnea might be a worthwhile idea but the agency should have talked to its stakeholders first. If they had been willing to listen to the aviation community they might have found smarter and less intrusive ways to ensure pilots are safe to fly. The irony is that sleep apnea has never been identified as a factor in a general aviation incident.”
Congress intervened in a similar situation in October 2013 after the Department of Transportation attempted to require sleep apnea testing for commercial truck drivers. In that case Congress passed a law requiring the Federal Motor Carrier Safety Administration to go through the formal rulemaking process before requiring testing.